For April 2021, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am a Human Resource Manager and one of our employees has been off on long-term sickness absence. They are about to exhaust their 28 weeks’ Statutory Sick Pay. The Company does not offer occupational sick pay. What do I do now and how do I manage this employee? 

I am assuming that you have had regular contact with this employee, and considering the length of absence, that you have already referred the individual for assessment by an Occupational Health practitioner. Hopefully, contact with the employee has allowed you to gain an understanding of the condition and the reason for the employee’s absence.

If there has been limited contact with the employee, or you have not referred them to Occupational Health, I suggest that you make a referral now and reach out to the individual. You will, of course, need to seek the employee’s consent for such referral. You should write to Occupational Health providing information about the employee’s job, responsibilities, tasks etc and the reason for the employee’s current absence. Depending on the reason for the employee’s absence, and the likely duration of this, you may also wish to consider whether it would appropriate to obtain a report from the employee’s GP or request their medical notes and records. Of course, you will require the employee’s consent to have sight of such documentation and share it and consequently, you would have to write to the employee seeking that consent and reminding them of their rights regarding access to medical records. The Company should also be cognisant of its obligations under GDPR in this regard.

If you have had regular contact with the employee and they have advised you of medical appointments, updates in their condition, etc, you could inform the Occupational Health practitioner of this so that they can provide as full a report as is possible. Considering the duration of the employee’s absence, you might also wish to ask the Occupational Health practitioner to comment on whether the individual is disabled, under the Disability Discrimination Act, and if so, what reasonable adjustments the Occupation Health practitioner may suggest.

Even if the employee’s condition does not classify them as a disabled person under the Disability Discrimination Act, you should consider the possibility of any arrangements that might facilitate the employee’s return to work, e.g. a phased return or alternative employment.

I suggest you also write to the employee informing them that their entitlement to Statutory Sick Pay is about to expire and suggesting they contact their local Jobs and Benefits Office, regarding the possibility of seeking Employment and Support Allowance.

I also suggest it is not advisable to simply keep the employee “on the books” without being proactive in this matter. Remember, the individual will remain an employee even if they do not attend for work and will continue to accrue holiday entitlement. It will not be possible for you to pay the employee in lieu of holiday accrued until the end of their employment and this employee would be entitled to seek paid holiday leave during the period of their ongoing absence. If they “remain on the books” they are, of course, continuing to accrue service, which will be important in calculating their notice period; they may need to be considered in any redundancy exercise; for alternative roles the Company will have to deal with their continuing employment in any event.

The employee’s absence may be grounds for dismissal on the grounds of capability. I would advise however, you do not simply move to consider a dismissal process without reviewing the Company’s own policies and procedures, and you should have as much updated medical information/OH assessments before considering that it is appropriate, and fair, to dismiss this employee on the ground of capability. You will be aware capability may be a fair reason for dismissal but if the Company is minded to undertake such a process, remember that you should follow the 3-step dismissal process, and allow the employee the right to be accompanied at meetings.